The month-old Oracle v. Google trial hasn't had a lot of clarity. Dozens of motions have been filed over issues both great and small, with the only clear development so far being a split copyright verdict. But key events in the past 24 hours have shown what the possibilities are going forward.

First, Judge William Alsup has said he will make a ruling about whether or not programming APIs are copyrightable as early as next week. Next, Oracle has agreed to drop its longshot case for copyright damages it was talking about pursuing last week. Those developments, along with the patent trial verdict that a San Francisco jury should soon deliver, will soon make clear the road ahead.

Four outcomes possible

The most important question in the case now is whether Alsup finds APIs can be copyrighted at all. Alsup said yesterday he is preparing a ruling on that issue, but it won't be ready before next week. The judge delayed this key ruling until after the entire copyright phase of the trial took place, saying he wanted to hear additional evidence before he ruled. Now the copyright phase is over, with a mixed verdict that found that Google had infringed, but the jury couldn't agree about whether Google was protected by fair use or not.

If Alsup finds that APIs are copyrightable, then Oracle will get to have some kind of retrial over whether Google is guilty of violating its copyright. There are disagreements about exactly what parameters that retrial should take, but Oracle will ultimately get some kind of second chance.

The second question involves patent infringement. This jury is now a patent jury, considering only patent issues and damages.

That leaves four outcomes for this case's resolution. There's plenty of room for gray area—for example, Oracle could win on one patent, but lose on another—but the instances below would seem to be the basic outlines of what happens next.

Oracle wins the API copyright argument, and wins the patent case. In this case, Oracle could still win big, since it will get a retrial on its key copyright question. Meanwhile, it will get a jury that will immediately consider its case for patent damages. However, those damages might not be huge—Oracle's own expert recently suggested royalties for these two patents should be a bit over $4 million. There's also a court-appointed expert testifying in this case—likely to be influential with jurors—who could suggest an even lower number. Still, legal headaches for Google will abound here.

Oracle wins the API copyright argument, but loses the patent case. Oracle will get its retrial at some later date, and might have a big shot at damages, but will have no immediate vindication.

Oracle loses the API copyright argument, but wins the patent case. Oracle will be in the position of asking a jury for relatively small damages—but at least enough to save face. It could also ask for an injunction that would force Google to alter Android, but the bar for getting one is high.

Oracle loses the API copyright argument, and loses the patent case. This outcome would be a total loss for the software giant, which has been cutting checks to some of the nation's top tech lawyers for two years now while prosecuting a legal crusade against Android.

No matter what happens, each side is likely to appeal. Especially on the API copyright issue, which will affect programmers throughout the US, a final decision will almost surely come from a panel of appellate judges at the 9th Circuit who set the law going forward. A European court recently found that APIs can't be copyrighted, and the issue is teed up here for a clear decision stateside.

55 Reader Comments

"Oracle wins the API copyright argument, and wins the patent case. In this case, Oracle could still win big, since it will get a re-trial on its key copyright question."

I don't really see how $150,000 (or some small multiple thereof) is a big win on the copyright side. According to one of the previous articles the judge told Oracle they wouldn't get any more than the statutory damages and worst case scenario is claiming 38 infringements (37 functions for the SSO claim + rangecheck function implementation) = $5.7 million. On the other hand maybe it's just 2 infringements for a whopping $300,000.

It looks like Oracle is just hoping for a miracle here. Maybe they can get a new trial in east Texas.

It definitely is. Every single problem Android encounters, including the malware in the Play Store and delays in software updates from carriers, is all due to an elaborate conspiracy network by Apple. It's nice to see someone is finally seeing the truth!

I don't really see how $150,000 (or some small multiple thereof) is a big win on the copyright side. According to one of the previous articles the judge told Oracle they wouldn't get any more than the statutory damages and worst case scenario is claiming 38 infringements (37 functions for the SSO claim + rangecheck function implementation) = $5.7 million. On the other hand maybe it's just 2 infringements for a whopping $300,000.

I'm pretty sure that whole discussion about statutory damages was only with respect to the 'rangeCheck' code. I think the possibilities for what happens with the API claims are wide open.

It definitely is. Every single problem Android encounters, including the malware in the Play Store and delays in software updates from carriers, is all due to an elaborate conspiracy network by Apple. It's nice to see someone is finally seeing the truth!

I'm talking about legal battles. Not bullshit software updates or malware in the Play Store.

Copyright of APIs is a murky area, and I think the answer is "it depends", since the definition of what constitutes an API is not set in stone. However, I'm rather inclined to say that generally speaking, an API can't itself be copyrighted, but the implementation behind the API can be, provided the functionality being implemented is non-trivial.

I'm talking about legal battles. Not bullshit software updates or malware in the Play Store.

I was hoping you were just being facetious and I was playing along, but I see my faith was misplaced. It's absolutely ridiculous to think that this was Apple's doing. Oracle just wanted to make money from Android's profits, and they believed they had a valid case for it.

I'm talking about legal battles. Not bullshit software updates or malware in the Play Store.

I was hoping you were just being facetious and I was playing along, but I see my faith was misplaced. It's absolutely ridiculous to think that this was Apple's doing. Oracle just wanted to make money from Android's profits, and they believed they had a valid case for it.

I'm talking about legal battles. Not bullshit software updates or malware in the Play Store.

I was hoping you were just being facetious and I was playing along, but I see my faith was misplaced. It's absolutely ridiculous to think that this was Apple's doing. Oracle just wanted to make money from Android's profits, and they believed they had a valid case for it.

Yes, but that had something called evidence behind it. Money changed hands and there was a paper trail. Here, there's nothing more than speculation.

True. Oracle is perfectly capable of being nefarious on their own. Time will tell whether they had external motivation as well, though the only thing it would change is to give indie software devs yet another company to be angry at (for trying to change the state of law in a way that is unfriendly to software).

It could be argued that Larry Ellison, being a very close friend of Jobs for many years, was having one more go at bringing down Android in memory of his best buddy. But as Ellison seems such a creature of the night anyway, I doubt if he needed much incentive from anyone else...

It does seem to me that Oracle grabbed SUN mainly for Java, with more interest in using that to profit somehow from the mobile boom, rather than for developing the language, or any other parts of Sun's business come to think of it (talking as a long time Solaris admin here...).

It's been fun following the trial though. Reading the Oracle summing up commentary on groklaw.net, the Oracle lawyer seemed to be adopting the Chewbacca Defense when describing the difference between static and dynamic linking .

Don't link to self-admitted, paid shills for MSFT and Oracle (he's paid by both, and it's well known that he sees the world through his own, money-coloured RDF.)

Oletros wrote:

jpcg wrote:

The only important question at this point is if Oracle can get a meaningful injuction against Android to return them into the Java fold. After this Google has to settle at Oracles terms...

Very unlikely scenario

jpcg wrote:

Those court mandated damages are nice to have, but Oracle made it clear on several occasions that an injuction is what they really want. I wonder why this article doesn't mention this...

Any source to back this? Because Oracle has been asking damages and not injunctions.

Correct. This has been about money from the moment Sun went up for sale. Oracle purchased Sun for the primary purpose of suing Android to save themselves. The entire case has been about damages, and the whole "woe is Java, they fragmented us, we just wanna bring them home!" is a fairly obvious strawman to help them get to those damages (especially given that they had significantly fragmented Java themselves).

It does seem to me that Oracle grabbed SUN mainly for Java, with more interest in using that to profit somehow from the mobile boom, rather than for developing the language, or any other parts of Sun's business come to think of it.

I don't really think so. You are missing an important product in the equation - mysql - and Larry Ellison himself said that to sell custom hardware for its software was one of the main reasons to buy Sun.

Java was just a by-product but a very important in the Oracle ecosystem. Pretty much ALL of Oracle middleware and most of its management software is written in Java.

But the early 2010 phone market was still Nokia's play ground with a non-smartphone dominated market. The first Android vendor in the market was HTC with a mere 8 million devices sold, where Nokia had 432 million devices sold, mostly Symbian C/C++ based devices.

But of course Oracle, Microsoft and any other big corporation is going to try to monetize each and any operation they make and to win a beefy compensation here will make the Sun operation from good-but-yet-to-monetize-that-billion to astoundingly-bright-move. No CEO will miss this opportunity. They really have little to lose - few millions - that loses are easy to explain to shareholders - have to engage that legal battle or copyright would dilute - and have far too much to win if they have to get paid for each Android smartphone out there, or regain control of the Android ecosystem.

Hmm, I suspect that there are some who would not associate Florian Müller with fair and balanced analysis.... He's good to read to get a view from the anti-Google lobby, but his bias and agenda sticks out even more than the pro-Google bias on Groklaw (imho..). Good to read all opinions though while making ones own mind up.

Hmm, I suspect that there are some who would not associate Florian Müller with fair and balanced analysis.... He's good to read to get a view from the anti-Google lobby, but his bias and agenda sticks out even more than the pro-Google bias on Groklaw (imho..). Good to read all opinions though while making ones own mind up.

I'd have to see a non-ludicrous case involving Google to make that assumption of bias on Groklaw. I've only really followed THIS case closely, and the bias seems more pro-software and pro-sanity, than it does pro-Google; it just happens that a Google win in this case is a win for software and sanity, and it doesn't hurt that Oracle's made a farce of the thing with some of their moves and assertions.

Hmm, I suspect that there are some who would not associate Florian Müller with fair and balanced analysis.... He's good to read to get a view from the anti-Google lobby, but his bias and agenda sticks out even more than the pro-Google bias on Groklaw (imho..). Good to read all opinions though while making ones own mind up.

Definitely Groklaw is on Google's side but it is because Google is fitting to their philosophy not because they are paid for it. They are against FUD and they give actual court transcripts without modification so you can get your own opinion if you want.

Hmm, I suspect that there are some who would not associate Florian Müller with fair and balanced analysis.... He's good to read to get a view from the anti-Google lobby, but his bias and agenda sticks out even more than the pro-Google bias on Groklaw (imho..). Good to read all opinions though while making ones own mind up.

Definitely Groklaw is on Google's side but it is because Google is fitting to their philosophy not because they are paid for it. They are against FUD and they give actual court transcripts without modification so you can get your own opinion if you want.

It does seem to me that Oracle grabbed SUN mainly for Java, with more interest in using that to profit somehow from the mobile boom, rather than for developing the language, or any other parts of Sun's business come to think of it.

I don't really think so. You are missing an important product in the equation - mysql - and Larry Ellison himself said that to sell custom hardware for its software was one of the main reasons to buy Sun.

Java was just a by-product but a very important in the Oracle ecosystem. Pretty much ALL of Oracle middleware and most of its management software is written in Java.

I'd associate Oracle's 'ownership' of MySQL with how they wish to 'own' Java. They really do not like open source software competing in the wild so adopt the tried and tested embrace, extend and extinguish strategy. Earning a few pennies from Java licensing amounts to a huge sum if Android is deemed as using or is derived from 'Java'.

Quote:

But the early 2010 phone market was still Nokia's play ground with a non-smartphone dominated market. The first Android vendor in the market was HTC with a mere 8 million devices sold, where Nokia had 432 million devices sold, mostly Symbian C/C++ based devices.

When Oracle bought Sun Android was already gathering serious momentum. Smartphones were clearly going to dominate the landscape for some time to come. I'm pretty sure the idea of either negotiating a license deal or litigation against Google was on their radar, and I wouldn't blame Oracle for going down that path. Google must have known about these possibilities but decided the risk was not significant. They were and are operating in an incredibly fast moving market. Their lawyers could worry about infringement later, but not at the expense of losing out on the next big shift in consumer Internet access.

Quote:

But of course Oracle, Microsoft and any other big corporation is going to try to monetize each and any operation they make and to win a beefy compensation here will make the Sun operation from good-but-yet-to-monetize-that-billion to astoundingly-bright-move. No CEO will miss this opportunity. They really have little to lose - few millions - that loses are easy to explain to shareholders - have to engage that legal battle or copyright would dilute - and have far too much to win if they have to get paid for each Android smartphone out there, or regain control of the Android ecosystem.

But I think it have little to do with Oracle's reasons to buy Sun.

Yes, Oracle have a fiduciary duty to their shareholders to maximise profits. Also compared to Sun they are more willing both from a corporate, ideological and financial position to battle it out with an equally large opponent.

Owning Java is what gives them that right, so I do argue that this was a key component in their purchase of Sun. I also don't believe they will get very far with it - probably not even enough to cover their no doubt huge lawyers fee. But who knows. Juries are people too....

Hmm, I suspect that there are some who would not associate Florian Müller with fair and balanced analysis.... He's good to read to get a view from the anti-Google lobby, but his bias and agenda sticks out even more than the pro-Google bias on Groklaw (imho..). Good to read all opinions though while making ones own mind up.

I'd have to see a non-ludicrous case involving Google to make that assumption of bias on Groklaw. I've only really followed THIS case closely, and the bias seems more pro-software and pro-sanity, than it does pro-Google; it just happens that a Google win in this case is a win for software and sanity, and it doesn't hurt that Oracle's made a farce of the thing with some of their moves and assertions.

Yes, my comparison of Groklaw and Fosspatents was unfair to Groklaw from a trial reporting point of view, but the commentaries attached to the transcripts are obviously pro Google - which can be defined as a 'bias'. I personally rely on Groklaw to keep abreast of this trial though. They do a great job.

We heard the testimony of Mr. Bloch. I couldn't have told you the first thing about Java before this problem. I have done, and still do, a significant amount of programming in other languages. I've written blocks of code like rangeCheck a hundred times before. I could do it, you could do it. The idea that someone would copy that when they could do it themselves just as fast, it was an accident. There's no way you could say that was speeding them along to the marketplace. You're one of the best lawyers in America, how could you even make that kind of argument?

So, even Oracle's 'win' with regards to rangeCheck is still not assured...

And the rest of the transcript seems to indicate that Oracle is desperately grasping at straws... I don't think that will go down well with the jury.

Hmm, I suspect that there are some who would not associate Florian Müller with fair and balanced analysis.... He's good to read to get a view from the anti-Google lobby, but his bias and agenda sticks out even more than the pro-Google bias on Groklaw (imho..). Good to read all opinions though while making ones own mind up.

I'd have to see a non-ludicrous case involving Google to make that assumption of bias on Groklaw. I've only really followed THIS case closely, and the bias seems more pro-software and pro-sanity, than it does pro-Google; it just happens that a Google win in this case is a win for software and sanity, and it doesn't hurt that Oracle's made a farce of the thing with some of their moves and assertions.

Yes, my comparison of Groklaw and Fosspatents was unfair to Groklaw from a trial reporting point of view, but the commentaries attached to the transcripts are obviously pro Google - which can be defined as a 'bias'. I personally rely on Groklaw to keep abreast of this trial though. They do a great job.

I was referring to those commentaries. Again, I see it as pro-software and pro-sanity (and they are, by definition, pro-FOSS, they say so themselves), the fact that it reads as pro-Google is because Google, in this case, is pro-software, pro-sanity, and pro-FOSS. As the saying goes, the enemy of my enemy is my friend, and in this case, that makes Google their friend. Flip the coin and have Google "in the wrong" and you can feel safe they'd likely be slamming google.

As to FOSSpatents, it's better if you refer to Florian Mueller by name, as that domain is misleading and presents an improper appearance of legitimacy. He is not a journalist, he is not a lawyer, he is a paid consultant and shill for multiple monopolistic, anti-competitive, and generally not nice corporations. These corporations include Microsoft and Oracle (and in the Oracle case, he began coverage shortly after the start of the trial, and IMMEDIATELY AFTER announcing his employment by Oracle.) His opinions (and that's all they are) are of little or no value beyond entertainment, much like Rush Limbaugh, Glen Beck, Bill O'Reily, and other lunatics that will never let the truth get in the way of a good story (preferably with generous amounts of FUD thrown in).

Hmm, I suspect that there are some who would not associate Florian Müller with fair and balanced analysis.... He's good to read to get a view from the anti-Google lobby, but his bias and agenda sticks out even more than the pro-Google bias on Groklaw (imho..). Good to read all opinions though while making ones own mind up.

I'd have to see a non-ludicrous case involving Google to make that assumption of bias on Groklaw. I've only really followed THIS case closely, and the bias seems more pro-software and pro-sanity, than it does pro-Google; it just happens that a Google win in this case is a win for software and sanity, and it doesn't hurt that Oracle's made a farce of the thing with some of their moves and assertions.

Yes, my comparison of Groklaw and Fosspatents was unfair to Groklaw from a trial reporting point of view, but the commentaries attached to the transcripts are obviously pro Google - which can be defined as a 'bias'. I personally rely on Groklaw to keep abreast of this trial though. They do a great job.

As to FOSSpatents, it's better if you refer to Florian Mueller by name, as that domain is misleading and presents an improper appearance of legitimacy. He is not a journalist, he is not a lawyer, he is a paid consultant and shill for multiple monopolistic, anti-competitive, and generally not nice corporations. These corporations include Microsoft and Oracle (and in the Oracle case, he began coverage shortly after the start of the trial, and IMMEDIATELY AFTER announcing his employment by Oracle.) His opinions (and that's all they are) are of little or no value beyond entertainment, much like Rush Limbaugh, Glen Beck, Bill O'Reily, and other lunatics that will never let the truth get in the way of a good story (preferably with generous amounts of FUD thrown in).

Yes I've had discussions about and against Florian Müller (who I referred to by name in an earlier post ) many times. The man is clearly a shill, and unfortunately many "technology" journalists are guilty of taking his claims and posting them unchallenged. I believe a lot of that is because Google scares the crap out of a lot of content creators and distributors. There are powerful forces at work here, without getting to paranoid or conspiratorial....

As to FOSSpatents, it's better if you refer to Florian Mueller by name, as that domain is misleading and presents an improper appearance of legitimacy. He is not a journalist, he is not a lawyer, he is a paid consultant and shill for multiple monopolistic, anti-competitive, and generally not nice corporations. These corporations include Microsoft and Oracle (and in the Oracle case, he began coverage shortly after the start of the trial, and IMMEDIATELY AFTER announcing his employment by Oracle.) His opinions (and that's all they are) are of little or no value beyond entertainment, much like Rush Limbaugh, Glen Beck, Bill O'Reily, and other lunatics that will never let the truth get in the way of a good story (preferably with generous amounts of FUD thrown in).

If you read his last entries you can see that he is totally out of reality still talking about Oracle winning injunctions, saying that Google hasn't won anything.

I expect that he will have a good check, because he has lost all of his little reputation.

Another way of putting just how silly that idea of patenting an API is.... by doing so, Oracle in essence says that it owns your Java code for the rest of your life. Nobody else is allowed to write an interpreter or compiler that runs your code. By providing the compiler, they lock you into using their product for the duration of copyright, likely a hundred years or more. Want to switch to a cheaper or better provider? You can't, unless you rewrite your entire codebase.

It's an absolutely ludicrous idea, and I hope the Coding Judge will get that.

Copyright of APIs is a murky area, and I think the answer is "it depends", since the definition of what constitutes an API is not set in stone. However, I'm rather inclined to say that generally speaking, an API can't itself be copyrighted, but the implementation behind the API can be, provided the functionality being implemented is non-trivial.

While I understand the legal side of copyright I'm a lot fuzzier on the technical side of APIs. I understand that if someone copies code line for line there can be copyright violation but if all the supposedly infringing party does is create the same effect with different code there is not copyright violation. You simply cannot copyright the outcome of something, that's what patents are for.

I really think this will change the outcome of the decision since he has a good understanding of the complexity of the code (how easy it could have been written by Google and not necessarily copied) and what it does. He already challenged the Oracle Lawyer on the RangeCheck question, asking him to prove that Google had saved time by copying the code when it would have taken them the same amount of time to simply code it.

I'm talking about legal battles. Not bullshit software updates or malware in the Play Store.

I was hoping you were just being facetious and I was playing along, but I see my faith was misplaced. It's absolutely ridiculous to think that this was Apple's doing. Oracle just wanted to make money from Android's profits, and they believed they had a valid case for it.

I guess you're not aware of the history between Apple and Oracle . . .

As to FOSSpatents, it's better if you refer to Florian Mueller by name, as that domain is misleading and presents an improper appearance of legitimacy. He is not a journalist, he is not a lawyer, he is a paid consultant and shill for multiple monopolistic, anti-competitive, and generally not nice corporations. These corporations include Microsoft and Oracle (and in the Oracle case, he began coverage shortly after the start of the trial, and IMMEDIATELY AFTER announcing his employment by Oracle.) His opinions (and that's all they are) are of little or no value beyond entertainment, much like Rush Limbaugh, Glen Beck, Bill O'Reily, and other lunatics that will never let the truth get in the way of a good story (preferably with generous amounts of FUD thrown in).

If you read his last entries you can see that he is totally out of reality still talking about Oracle winning injunctions, saying that Google hasn't won anything.

I expect that he will have a good check, because he has lost all of his little reputation.

Copyright of APIs is a murky area, and I think the answer is "it depends", since the definition of what constitutes an API is not set in stone. However, I'm rather inclined to say that generally speaking, an API can't itself be copyrighted, but the implementation behind the API can be, provided the functionality being implemented is non-trivial.

This is close to how I see it as well, but I think of it as the API copyright being a fundamental part of the code. Changing the API can render the code partially or completely defective. The API is the structure of the code pieces.

I don't think an API should have copyright separate from the code that is implemented, so I don't see it as an issue of "can API's be copyrighted" as much as "can they be copyrighted independently of the code it describes".

If API is copyrightable, does that mean every time I write a new class like 'Point' or function like 'locate()', I've already infringed someone else's copyright ?

It just doesn't sound right to me.

I would think that the names are part of the code copyright. What you need to be careful of is if someone has ever implemented a function with 0, 1, or more arguments. If you do any of those things, you might be violating their API's (no matter whether or not you tried to escape liability by renaming "Point" to "Color" and completely changing the underlying code).

That's what I am afraid of. More lawsuits by lawyers who don't know or care about software suing over "structural and organizational" similarities, when those similarities are so vital to software. Do we really want every single software product to need to implemetent an entirely unqiue API (no copy in whole or in part)?

Who wants to do a search of all code ever created to ensure your code organization is truly unique?